The Texas Attorney General’s Thorough Plans To Discriminate Against LGBT People

Texas Attorney General Ken Paxton (R) CREDIT: AP PHOTO/ERIC GAY
Texas Attorney General Ken Paxton (R) CREDIT: AP PHOTO/ERIC GAY

This year, Texas lawmakers considered a record number of bills targeting LGBT people for discrimination and persecution, but almost all of them failed to pass. The state’s top elected leaders haven’t given up yet, however, and recently laid out extensive plans for future anti-LGBT bills.

Last week, Lt. Gov. Dan Patrick (R) announced interim charges for the various committees in the legislature. At the top of his list for the State Affairs Committee was “religious liberty,” encouraging “recommendations to ensure that the government does not force individuals, organizations or businesses to violate their sincerely held religious beliefs.”

The same day, Attorney General Ken Paxton (R) was at the ready with a detailed list of proposals the Texas legislature might consider, both for how to further limit a woman’s right to choose, and for “protecting religious liberties.”

Paxton’s proposals read as general principles that skimp on the details, but are immediately recognizable as mirroring other approaches that have been considered by conservative lawmakers across the country. Here are the recommendations he made to state lawmakers about exactly what kinds of discrimination he believes should be legal — and in fact, enshrined in law — in Texas:

“Religious organizations should not be forced to compromise their religious beliefs when making staffing and housing decisions.”

Discrimination against LGBT people is already legal in Texas, but the state legislature could certainly pass legislation formally licensing religious organizations to openly refuse to hire people who are LGBT, and for shelters, refuse service to people who are LGBT. Texas has already faced high-profile examples of both.


Last year, a children’s shelter in Lubbock fired an employee for introducing some of the teenagers to his same-sex fiancé. That shelter, The Children’s Home, is “licensed and reimbursed for services rendered by the Texas Department of Family and Protective Services.” Lawmakers could ensure that no act of discrimination ever endangers such funding.

Similarly, a transgender woman was denied housing by a Dallas shelter run by the Salvation Army, a religious organization. She was told when she interviewed that she could not be offered a room because she had not yet had gender reassignment surgery. She filed a complaint with Dallas’ Fair Housing Office, because the city actually protects against discrimination against transgender people, but state lawmakers could override such protections and ensure such discrimination can continue across the state.

“Faith-based adoption and foster care agencies should be free from discrimination based on their religious beliefs, as has occurred in other jurisdictions.”

Here, Paxton is referring to the adoption agencies — usually Catholic Charities — who have been denied state funding for refusing to serve same-sex couples in other states. In every case, the agency voluntarily shut down rather than continue to provide service without the support of taxpayer funding. In Colorado, Catholic Charities wielded their adoption services as a political weapon against civil unions legislation, threatening to shut down even if they were granted an exemption to refuse service to same-sex couples.

Similar to Paxton’s suggestion, federal legislation has similarly been introduced known as the so-called “Child Welfare Provider Inclusion Act.” It would ensure that government funding could never be cut for any child welfare agency because it refuses to serve same-sex couples.

“The accreditation of religious schools should not be revoked due to the school’s sincerely-held religious beliefs.”

This claim has been one of conservatives’ consistent warnings about what will happen now that marriage equality is the law of the land. It stems from a question Justice Samuel Alito asked during the Obergefell trial, referencing how Bob Jones University lost its tax-exempt status — not its accreditation — for discriminating against students who engaged in interracial relationships.


As ThinkProgress has previously explained, it’s unlikely that a school will lose its tax-exempt status simply for espousing a religious belief against same-sex marriage. What doomed Bob Jones was its active engagement in discrimination against people because of their race, not its beliefs about interracial relationships. A school’s religious tenets alone would likely not endanger their recognition. Even if a school did actively discriminate against students based on their sexual orientation, there is a much weaker foundation in law for such repercussions as compared to the precedents against racial discrimination.

With no federal law even protecting LGBT people against discrimination in education, any concern that a school’s tax-exempt status is at risk for being anti-gay is far-fetched at best.

“Tax assessors should not revoke religious tax accommodations based on religious beliefs.”

Like the three more specific examples above, this is a more generalized commitment to ensuring that no religious organization ever lose its taxpayer subsidies because it discriminates against LGBT people.

“Religious beliefs when providing counseling should be protected.”

Paxton may be referring to two possible ways that counseling is used against LGBT people.

Many states are currently working to ban conversion therapy for minors, ensuring that they aren’t subjected to harmful, ineffective treatments that try to undo their sexual orientation or gender identity. In contrast, the Texas Republican Party recognized in its 2014 platform “the legitimacy and value of counseling which offers reparative therapy and treatment to patients who are seeking escape from the homosexual lifestyle. No laws or executive orders shall be imposed to limit or restrict access to this type of therapy.”


Another conflict that has arisen in the counseling world is when students in counseling programs refuse to serve clients because of their LGBT identity without condemning them. A federal judge in Georgia ruled against a counseling student at Augusta State University in 2012 who insisted on imposing her religious beliefs, noting that she was conflating her “personal and professional values.” In contrast, the Sixth Circuit ruled in favor of a student at Eastern Michigan University, but only because she referred the client and never actually imposed her beliefs.

In either of these situations, Paxton’s approach would favor policies that harm the well-being of LGBT people.

“Small businesses and closely held corporations should not be required to provide goods or services for weddings that violate their sincerely held religious beliefs.”

This is the most obvious endorsement of discrimination — and not just against same-sex couples. On its face, Paxton’s claim seems to endorse religious-based discrimination against any kind of couple, including interracial couples, interfaith couples, and previously divorced people.

But both Paxton and Patrick have expressed support for wedding venues that wish to refuse service for same-sex couples. When a Colorado judge ruled against a baker for such discrimination, Patrick tweeted that it was “an attack on Americans’ 1st Amendment rights.” When the Supreme Court first ruled on marriage equality, Paxton actually encouraged county clerks to refuse service to same-sex couples too.

Currently, no state or federal law requires any business to serve LGBT people, but several Texas cities — including Austin, Houston (pending the fiercely contested referendum), Dallas, Fort Worth, Plano, San Antonio, And El Paso — do offer LGBT protections for public accommodations. If state lawmakers passed a law licensing anti-gay discrimination, it would override those city protections.

“Judges and other officiants should not be forced to perform weddings that violate their sincerely held religious beliefs.”

The Supreme Court’s Obergefell decision guaranteed that same-sex couples should have access to “civil marriage on the same terms and conditions as opposite-sex couples.” Paxton would challenge that by inviting government officials to refuse to perform their sworn duty to uphold the Constitution, not unlike Kim Davis of Kentucky.

If judges and county clerks refused to officiate marriages, it could force couples to have to drive hours across Texas to find someone who will.

“The State does not, in the process of complying with the United States Supreme Court’s ruling in Obergefell v. Hodges, needlessly trample the religious liberties of State and local government employees.”

Here again — and more explicitly — Paxton is endorsing discrimination by government employees against same-sex couples. This could mean any number of refusals of services, from county clerks who refuse to issue marriage licenses, to tax processors refusing to recognize same-sex couples as married, to a benefits administrator refusing to issue the proper benefits.

This rhetoric matches the pro-discrimination “First Amendment Defense Act” that has been proposed in Congress and endorsed by the Republican National Committee.

“Public school, college, or university students’ retain their constitutional freedom to speak their religious beliefs, to associate with others of similar religious beliefs, and to not be compelled to participate in religious practices contrary to their religious beliefs.”

This likely refers to forcing universities to subsidize student groups with student fees even if the group refuses to welcome all students according to the university’s nondiscrimation policies. In 2013, Texas lawmakers considered just such a “license to discriminate” bill, which would have allowed any university group to refuse membership to anybody while still enjoying privileges on campuses. It failed, but similar bills have passed elsewhere, such as in Virginia.

Paxton could also be encouraging opposition to services that support LGBT students and policies, like those that address bullying. In 2013, Texas lawmakers targeted university LGBT resource centers, threatening to cut state funding to campuses if any of it went to support the health and well-being of LGBT students, claiming that these centers encourage behavior that creates a high risk for HIV, Hepatitis B, and other sexually transmitted diseases.

“Discrimination laws and ordinances should be uniform across the State.”

To create this uniformity, Paxton likely hopes Texas will follow the example of Arkansas and Tennessee. In those states, the legislatures passed laws that force all municipalities to conform to what nondiscrimination protections are offered at the state level — and no more. Because the state doesn’t protect sexual orientation and gender identity, neither can cities or counties. Rather than circumventing local protections, this would invalidate them completely.

Texas lawmakers proved this year that they will not hesitate to consider any number of anti-LGBT bills. With the state’s top officials encouraging them to try them again and go further in future sessions, there could be a long slog ahead for defending LGBT equality across Texas.